Author Archive for virginia-law-review

Virginia Law Review 95:8 (December 2009)

posted by Virginia Law Review

VOLUME 95      NOVEMBER 2009     ISSUE 7

Virginia Law Review 95:8 (December 2009)

 ARTICLES

Making Good on Good Intentions by Katharine T. Bartlett

The State of State Anti-takeover Law by Michal Barzuza

NOTES

Incarceration, Accommodation, and Strict Scrutiny by James Nelson

Internet Radio: The Case for a Technology Neutral Royalty Standard by Andrew Stockment

  January 26, 2010 at 3:20 pm   Posted in: Law Rev (Virginia), Law Rev Contents   Print This Post   No Comments

Virginia Law Review 95:7 (November 2009)

posted by Virginia Law Review

VOLUME 95      NOVEMBER 2009     ISSUE 7

Virginia Law Review 95:7 (November 2009)

ARTICLES

Interrogation Stories by Anne M. Coughlin

Constitutional Enforcement by Proxy by John F. Preis

Counterinsurgency, The War on Terror, and The Laws of War by Ganesh Sitaraman

NOTES

The Free Exercise Rights of Religious Institutions: Church Property and the Constitutionality of Virginia Code § 57-9 by Fiona McCarthy

  November 30, 2009 at 3:11 pm   Posted in: Law Rev (Virginia), Law Rev Contents, Uncategorized   Print This Post   No Comments

Virginia Law Review 95:6 (October 2009)

posted by Virginia Law Review

VOLUME 95      OCTOBER 2009     ISSUE 6

Virginia Law Review 95:6 (October 2009)

ARTICLES

National Security Fact Deference	Robert M. Chesney
Intent to Contract	Gregory Klass

 ESSAY

Originality

Gideon Parchomovsky  & Alex Stein

NOTE

Separate, But Equal? Virginia’s “Independent” Cities and the Purported Virtues of Voluntary Interlocal Agreements

David K. Roberts

  October 19, 2009 at 6:21 pm   Posted in: Law Rev (Virginia), Law Rev Contents, Uncategorized   Print This Post   No Comments

Virginia Law Review 95:5 (September 2009)

posted by Virginia Law Review

VOLUME 95      SEPTEMBER 2009     ISSUE 5

Virginia Law Review 95:5 (September 2009)

ARTICLES

Standing for the Public: A Lost History	M. Elizabeth Magill
Full Faith and Credit in the Early Congress	Stephen E. Sachs

NOTES

Is O Centro Really A Sign of Hope for RFRA Claimants?	Matt Nicholson
The Hapless Ecosystem: A Federalist Argument in Favor of an Ecosystem Approach to the Endangered Species Act	Scott Schwartz

  September 25, 2009 at 7:27 pm   Posted in: Law Rev (Virginia), Law Rev Contents   Print This Post   No Comments

Virginia Law Review 95:4 (June 2009): The SEC in a Time of Discontinuity

posted by Virginia Law Review

VOLUME 95      JUNE 2009     ISSUE 4

 

Virginia Law Review 95:4 (June 2009)

Symposium Issue: The SEC in a Time of Discontinuity

The SEC in a Time of Discontinuity: Introduction to Virginia Law Review Symposium

Joel Seligman

ARTICLES

The Race for the Bottom in Corporate Governance	Frank H. Easterbrook
Redesigning the SEC: Does the Treasury Have a Better Idea?	John C. Coffee, Jr. and Hillary A. Sale
Top Cop or Regulatory Flop? The SEC at 75	Jill E. Fisch
Commentary On Redesigning The Sec: Does The Treasury Have A Better Idea?	Steven M.H. Wallman
Securities Law and the New Deal Justices	A.C. Pritchard and Robert B. Thompson

ESSAY

The Securities Laws and the Mechanics of Legal Change

Barry Cushman

ARTICLES

Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC	James D. Cox
Treatment Differences and Political Realities in the GAAP-IFRS Debate	William W. Bratton and Lawrence A. Cunningham
The SEC, Retail Investors, and the Institutionalization of the Securities Markets	Donald C. Langevoort

ESSAYS

Whither the SEC Now?	Brian G. Cartwright
A Requiem for the Retail Investor?	Alicia Davis Evans

  July 14, 2009 at 1:44 pm   Posted in: Law Rev (Virginia), Law Rev Contents, Uncategorized   Print This Post   No Comments

Virginia Law Review 95:3 (May 2009)

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VOLUME 95      MAY 2009     ISSUE 3

Virginia Law Review 95:3 (May 2009)

ESSAY

The Common Law Prohibition on Party Testimony and the Development of Tort Liability

Kenneth S. Abraham

 ARTICLE

Managers, Shareholders, and the Corporate Double Tax

Michael Doran

 ESSAYS

Chevron Has Only One Step	Matthew C. Stephenson and Adrian Vermeule
Chevron’s Two Steps	Kenneth A. Bamberger and Peter L. Strauss

NOTE

Deciding on Doctrine: Anti-miscegenation Statutes and the Development of Equal Protection Analysis

Rebecca Schoff

  May 27, 2009 at 7:19 pm   Posted in: Law Rev (Virginia), Law Rev Contents, Uncategorized   Print This Post   No Comments

Virginia Law Review 95:2 (April 2009)

posted by Virginia Law Review

VOLUME 95      APRIL 2009     ISSUE 2

Virginia Law Review 95:2 (April 2009)

ESSAY

Of Guns, Abortions, and the Unraveling Rule of Law

Judge J. Harvie Wilkinson III

ARTICLE

The Antitrust of Reputation Mechanisms: Institutional Economics and Concerted Refusals to Deal

Barak D. Richman

NOTES

Unmasking John Doe: Setting a Standard for Discovery in Anonymous Internet Defamation Cases	Jessica L. Chilson
Marriage & Redemption: Mormon Polygamy in the Congressional Imagination, 1862-1887	Kelly Elizabeth Phipps

  May 15, 2009 at 2:32 pm   Posted in: Law Rev (Virginia), Law Rev Contents   Print This Post   2 Comments

Virginia Law Review 95:1 (March 2009)

posted by Virginia Law Review

VOLUME 95      MARCH 2009     ISSUE 1

Virginia Law Review 95:1 (March 2009)

ARTICLES

Invalid Forensic Science Testimony and Wrongful Convictions	Brandon L. Garrett and Peter J. Neufeld
The Space Between Markets and Hierarchies	George S. Geis

 

NOTES

A Fourth Amendment Metamorphosis: How the Fourth Amendment Remedies and Regulations Facilitated the Expansion of the Threshold Inquiry	Elizabeth Canter
Consumerism and Information Privacy: How Upton Sinclair Might Once Again Protect Us From Ourselves (And Why We Should Let Him)	Benjamin Sachs

  May 12, 2009 at 3:03 pm   Posted in: Law Rev (Virginia), Law Rev Contents   Print This Post   No Comments

Virginia Law Review In Brief

posted by Virginia Law Review

In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Stephen F. Smith’s article The Supreme Court and the Politics of Death, published in the April 2008 Issue of the Virginia Law Review:

Professor Darryl K. Brown’s response, The Multifarious Politics of Capital Punishment: A Response to Smith , suggests “that the politics of death are not quite as bleak as Smith believes them to be,” and highlights “some significant developments in the moderation of capital punishment policy achieved through the democratic process” before closing with some thoughts regarding “the significance of the Court’s recent forays into capital punishment regulation.”

In Get in the Game or Get out of the Way: Fixing the Politics of Death, Professor Adam M. Gershowitz agrees with Professor Smith that “the Court has politicized the death penalty and in doing so inadvertently stymied reform efforts,” but takes a less optimistic view of the Court’s latest jurisprudence, instaed arguing, “If the Court desires to eliminate the arbitrariness of the death penalty, it needs to either take a major step forward or get out of the way so that the political actors can take responsibility.”

Finally, in What’s Wrong with Democracy? A Critique of “The Supreme Court and the Politics of Death”, Professor Paul G. Cassell and District Attorney Joshua K. Marquis take issue with the need for judicial reform, arguing that “[c]apital punishment is a proper punishment in the American criminal justice system, whose popular support should not mark it for judicial undermining, but rather judicial support,” and that “Professor Smith should be more trusting in the outcome of democratic processes.”

  September 30, 2008 at 4:14 pm   Posted in: Law Rev (Virginia), Law Rev Forum   Print This Post   No Comments

Virginia Law Review 94:5 (September 2008)

posted by Virginia Law Review

VOLUME 94      SEPTEMBER 2008     ISSUE 5

Virginia Law Review 94:5 (September 2008)

ARTICLE

NOTES

BOOK REVIEW

  September 29, 2008 at 8:27 pm   Posted in: Law Rev (Virginia), Law Rev Contents   Print This Post   No Comments

Virginia Law Review In Brief

posted by Virginia Law Review

In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Melissa Murray’s article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, published in the April 2008 Issue of the Virginia Law Review:

Professor Susan Frelich Appleton’s response, The Networked—Yet Still Hierarchical—Family, considers “what Murray’s call for recognition of caregiving networks might mean, first, for the traditional gender stereotypes that family law once embraced but now professes to reject and, then, for the issues of race and class that family law all too routinely ignores.”

In Rights and Realities, Professor Laura A. Rosenbury supports Professor Murray’s proposals “to the extent that they force reformers and scholars to confront who benefits and who is harmed by legal conceptions of the family, even ones that have been expanded to reflect functional approaches to the family,” but fears “that Murray’s analysis may be held back by an assumption about the appropriate relationship between rights and reality often embraced by family law scholars including, at times, by Murray herself.”

Finally, in Parents as Hubs, Professor Clare Huntington “wholeheartedly agree[s] with Professor Murray that the law should support families in providing care,” and advances the conversation by engaging “with a central aspect of Professor Murray’s argument: the nature of the recognition she argues that the law should provide for nonparental caregivers.” Professor Huntington goes on consider whether recognition should be “simply cognizance of and greater attention to the care provided by nonparents” or “direct legal protection of the relationship between a nonparental caregiver and a family.”

  September 9, 2008 at 8:02 pm   Posted in: Law Rev (Virginia), Law Rev Forum   Print This Post   One Comment

Virginia Law Review In Brief

posted by Virginia Law Review

In Brief, the online companion to the Virginia Law Review, recently published a discussion centered around Professor Matthew T. Bodie’s article Information and the Market for Union Representation, published in the March 2008 Issue of the Virginia Law Review:

Professor Catherine Fisk’s response worries that “[w]hile Professor Bodie does an admirable job of explaining why information matters, the process will not be significantly improved if an argument for more information is taken as an argument to protect the status quo of misleading and one-sided information.”

In Rent-to-Own Unionism?, Professor Jeffrey M. Hirsch notes that “Bodie rightly decries the NLRB’s failure to ensure that employees have access to the information needed to make a fully informed decision whether to unionize,” but remains unconvinced “that the gains from a consumer approach to union elections are large enough to warrant the regulatory response it demands.”

In Professor Harry G. Hutchinson’s response, he identifies and addresses three shortcomings in Professor Bodie’s proposal: “First, unions may resist disclosure initiatives unless they are paired with a card-check certification program, which defeats the goal of enabling workers to make rational decisions about union membership. Second, Bodie’s conception of capture focuses on employer capture and ignores the problem of capture by outside interest groups aligned with union hierarchs. Finally, Bodie’s mistaken conclusion that unions secure better conditions for workers leads to a faulty assessment of the problem of free riding.”

To conclude the forum, in The Market for Union Services: Reframing the Debate, Professor Bodie writes “a brief reply to their efforts, in hopes that it is just the beginning of a much more extended conversation about the way we conceive of and regulate union representation.” He focuses on the various policy implications of his proposal suggested by the other authors, specifically the effects of mandatory disclosure, card-check and neutrality agreements, and the idea that more information could lead to less union representation, before once again calling for continued discussion.

  April 13, 2008 at 2:32 pm   Posted in: Law Rev (Virginia), Law Rev Forum   Print This Post   No Comments

Virginia Law Review 94:1 (March 2008)

posted by Virginia Law Review

VOLUME 94      MARCH 2008     ISSUE 1

Virginia Law Review 94:1 (March 2008)

ARTICLES

ESSAY

NOTES

  April 9, 2008 at 6:35 pm   Posted in: Law Rev (Virginia), Law Rev Contents   Print This Post   No Comments

Virginia Law Review, 93:8 (December 2007)

posted by Virginia Law Review

VOLUME 93      DECEMBER 2007      ISSUE 8

ARTICLES

ESSAYS

NOTES

  December 23, 2007 at 5:56 pm   Posted in: Law Rev (Virginia), Law Rev Contents   Print This Post   No Comments

Virginia Law Review In Brief

posted by Virginia Law Review

In Brief, the online companion to the Virginia Law Review, recently published the following two essays:

Professor George Cohen’s essay takes an unorthodox position regarding the DOJ’s organizational prosecution policy.

His essay “aim[s] . . . not so much to defend the DOJ policy as to deflate the dominant criticisms and to refocus the debate.” He argues that “[t]he critics [of the Holder, Thomson, and McNulty Memos] seek to lay at the feet of the DOJ policy problems whose primary causes lie elsewhere, in places the critics may be reluctant to have us look.”

Professor Cohen writes further:

“The vehemence of corporate opposition to the government’s waiver policy may be a matter of whose ox is being gored. It is one thing when the corporation on its own wants to finger some low-level employee and label him a “bad egg” acting contrary to company policy so that the corporation can avoid prosecution. It is quite another when internal investigations turn up evidence of misbehavior at the highest levels and diffused throughout the organization. But that is what the recent corporate scandals are all about. The “coercion” that corporations claim to suffer may in fact be the discomfort that upper-level executives feel when they have to choose between waiving the privilege for the good of the company and saving their own necks. If so, then criticism that has been dressed up as a noble stand in defending a venerable privilege against government abuse is in reality just the corporate bar’s age-old attempt to protect upper-level corporate management rather than the entity client that corporate lawyers are supposed to serve. That would not be a surprise. The surprise is that people have been taken in for so long.”

Justin Weinstein-Tull’s case comment examines the Supreme Court’s recent opinion in Gonzales v. Carhart.

In Gonzales v. Carhart (Carhart II), the Court delivered a setback to a woman’s right to choose by affirming the constitutionality of the Partial-Birth Abortion Ban Act of 2003 (“Ban Act”). In doing so, however, the Court enlarged the scope of congressional power. The Court deferred to Congress’s factual findings and allowed Congress to determine for itself that an exception for the health of the mother was unnecessary. This deference, although disheartening in Carhart II, is promising for future civil rights legislation.

In Brief’s next issue, scheduled for publication on August 6, will feature two essays on the subject of the legal response to recent mass catastrophes:

• Professor Kenneth S. Abraham (U.Va. Law) will publish an essay on the Hurricane Katrina insurance claims.
• Kenneth R. Feinberg will publish an essay comparing the approaches toward victim compensation that were taken following 9/11 and the Virginia Tech shootings.

  July 30, 2007 at 8:30 am   Posted in: Law Rev (Virginia)   Print This Post   No Comments

Virginia Law Review In Brief, July 2007

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In Brief, the online companion to the Virginia Law Review, recently published case comments discussing two cases decided this term in the U.S. Supreme Court.

Professor Scott Dodson analyzes the impact of the Court’s opinion in Bell Atlantic Corp. v. Twombly on pleading standards:

“On May 21, 2007, the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly and gutted the venerable language from Conley v. Gibson that every civil procedure professor and student can recite almost by heart: that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” This Essay explains how Bell Atlantic did so and discusses some of its implications for pleading claims in the future.

* * *

Bell Atlantic is a significant statement from the Court from a proceduralist perspective (even if perhaps unremarkable from an antitrust perspective). The Supreme Court had cited to the “no set of facts” language in Conley twelve times in controlling opinions, and many lower courts had adhered to it and its liberal notice-pleading standard. For example, just a few weeks ago, Judge Easterbrook wrote for the U.S. Court of Appeals for the Seventh Circuit in Vincent v. City Colleges of Chicago: “[A] judicial order dismissing a complaint because the plaintiff did not plead facts has a short half-life. Any decision declaring ‘this complaint is deficient because it does not allege X’ is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b).” The Seventh and other circuits will now have to change their pleading jurisprudence.

The question, though, is what that change will look like.

Andrew George’s case comment examines the effect of Scott v. Harris on reasonable deadly force:

Though the Supreme Court might think otherwise, it has yet to hear a case where a police officer used deadly force to stop a nondangerous fleeing suspect. The Court recently showed its belief to the contrary in Scott v. Harris, where it found that a fleeing suspect posed a sufficient danger to justify the use of deadly force. In order to reach that conclusion, the Scott Court distinguished Tennessee v. Garner, which had held that a police officer could not use deadly force to stop the fleeing suspect. Although the Scott Court never explicitly questioned Garner’s reasoning, the Court’s distinction implicitly demonstrated a fundamental flaw in Garner’s understanding of dangerousness. Scott showed that dangerousness is not confined to a suspect’s potential to commit crimes after escaping; dangerousness is just as great a concern during the escape itself.

In Brief also recently published the following three essays on organizational prosecutions:

• Professor Brandon Garrett (U.Va. Law): United States v. Goliath

• Professor Daniel Richman (Columbia Law): Institutional Competence and Organizational Prosecutions
• F. Joseph Warin and Andrew Boutros (Gibson Dunn LLP): Deferred Prosecution Agreements: A View From the Trenches and a Proposal for Reform

Finally, the Virginia Law Review has added an Atom/RSS feed to its In Brief site. Throughout the summer, In Brief continues to publish original content on a biweekly basis. Our next two issues will appear on July 23 and August 6.

  July 17, 2007 at 5:44 pm   Posted in: Law Rev (Virginia)   Print This Post   No Comments

The Lost Promise of Civil Rights

posted by Virginia Law Review

The Lost Promise of Civil Rights. By Risa L. Goluboff. Cambridge, Mass.: Harvard University Press. 2007.

In Brief, the online companion to the Virginia Law Review, today posted a book excerpt from The Lost Promise of Civil Rights, by Virginia Law Professor Risa L. Goluboff.

Professor Goluboff argues that Brown v. Board of Education left “much of Jim Crow . . . unchallenged.” This resulted from “lawyers’ strategic litigation choices about which cases to pursue and which to avoid, which harms to emphasize and which to ignore, which constituencies to address and which to disregard.” Professor Goluboff thus “suggests that by uncovering historical alternatives to the civil rights law we know as our own, we can broaden our imagination about the possibilities for addressing the remnants of Jim Crow still facing the nation today.”

The book, published recently by Harvard University Press, has already received significant acclaim. Harvard Law Professor Mark Tushnet writes that The Lost Promise of Civil Rights “offers readers a brilliant reconceptualization of civil rights litigation.” Penn History Professor Thomas Sugrue calls the book “original, provocative, and persuasive.”

Professor Goluboff’s book will also be the subject of a Book Review by NYU Professor Derrick Bell in Volume 94 of the Virginia Law Review. The Book Review is scheduled to run in March 2008.

The excerpt is available on the In Brief site. [PDF]

  June 4, 2007 at 9:41 pm   Posted in: Law Rev (Virginia), Law Rev Forum   Print This Post   No Comments